Plea for Vacaville teen's new trial now in hands of judge

Ten months after a team of pro bono defense lawyers stepped in to represent a Vacaville teen convicted of the 2010 rape and stabbing of a 13-year-old Vacaville girl and the stabbing of her young brother, their argument for a new trial has finally been submitted to a judge.

On Monday, defense attorneys for Alexander Cervantes, 17, called their final witness in an attempt to secure a new trial, after five hearings spanning roughly four months. At the heart of their argument for a new trial was the effectiveness of Cervantes' trial lawyer.

Last year, Cervantes was convicted of more than a dozen felony charges, including aggravated mayhem, assault with a deadly weapon and rape, after being found guilty of breaking into a Balsam Way home in the early morning hours of Dec. 12, 2010, when he carried out the rape and stabbings.

Prosecutors argued that he was acting out of revenge for the victim's older brother snitching on someone.

However, Cervantes' trial lawyer, Deputy Conflict Defender Erin Kirkpatrick, focused on her client's high level of intoxication as a possible explanation for his actions.

The lone witness called to testify on behalf of the defense opined that Cervantes' blood alcohol content could have been as high as 0.25 percent at or near the time of the event. Roughly seven hours after the incident, Cervantes' BAC measured 0.12 percent, according to testimony.

Yet, the argument presented by Cervantes' new lawyers is based on allegations that Kirkpatrick didn't put on an adequate defense.

One of their claims is that Kirkpatrick never hired an investigator to assist her in building a defense. Also, much was made out of a so-called "mushroom defense," after it was indicated in recent proceedings that Cervantes may have ingested psychedelic mushrooms that night.

Retained by Cervantes' new attorneys, Fairfield criminal defense attorney John M. Coffer opined that there was a failure to carefully examine all of the physical evidence by Cervantes' defense.

"The failure to do the work prejudiced Mr. Cervantes' case," Coffer previously testified.

Last month, Cervantes' new attorney, Peter Obstler with Arnold & Porter LLP, questioned Kirkpatrick about her trial preparation. Kirkpatrick has since left the Conflict Defender's Office and is in private practice.

Obstler brought up an entry in the notes of Cervantes' first defense lawyer, William J. Pendergast, who is now a Superior Court commissioner.

Cervantes allegedly told Pendergast that he was on mushrooms the night of the incident. However, in subsequent interviews, Cervantes also said that he never used drugs, according to testimony. Testimony also indicated that a toxicology test performed on Cervantes after his arrest did not detect the presence of psilocybin mushrooms.

Asked why a mushroom intoxication defense wasn't further explored, Kirkpatrick stated: "It was pure speculation. I didn't have any evidence he took mushrooms that night."

At the close of their evidence on Monday, Obstler and co-counsel Misti Groves of Bingham McCutchen LLP offered no argument in support of their motion.

Judge Harry S. Kinnicutt said he would review the evidence and ordered Cervantes back at 11 a.m. Oct. 18 for a ruling on the motion for a new trial.